Rejecting Nullification: Idaho Draws the Constitutional Line

The recent effort to revive nullification may have just met its high water mark.

In the last 6 months, various laws with the objective of “nullifying” Obamacare have been introduced in thirteen states: Arizona, Idaho, Indiana, Maine, Montana, Nebraska, New Hampshire, North Dakota, Oklahoma, Oregon, South Dakota, Texas, and Wyoming. To date, the farthest along had been Idaho, where a nullification bill declaring Obamacare “void and of no effect” and stopping its enforcement had passed the House and the governor was itching to sign it in to law. But in a victory for common sense and constitutional government, the legislation has been defeated in the Idaho Senate’s State Affairs Committee.

At the center of our system of government is the Constitution and all federal and state officers and judges are bound by oath to support it and the laws of the United States made in pursuance thereof. The Constitution is the supreme law of the land—not the Supreme Court, or the federal government, or the states for that matter. This principle of the rule of law dates back at least to the Magna Carta, and was the centerpiece of American constitutional thinking.

So how do we enforce the Constitution over unconstitutional laws? The document itself lays out the best options: change the law, stop its implementation, challenge it in the courts and, if necessary, amend the Constitution. But there is no state nullification clause. The constitutional case against Obamacare can be made in detail and in general, but it does not trigger the nascent constitutional power of a state to unilaterally make it null and void.

Some mistakenly claim that state nullification was intended as a regular matter by Thomas Jefferson and James Madison in their Kentucky and Virginia Resolutions of 1798, both written in opposition to the Alien and Sedition Acts. Jefferson did use the term “nullification” in his draft of the Kentucky Resolution, but he makes it clear he is speaking in terms of an assertion of a natural right to revolution—admittedly and of necessity outside the constitutional structure. Even so, as a practical matter, after declaring the offensive laws “void and of no force,” Kentucky only called on other states to “unite with this commonwealth in requesting their repeal” by Congress.

Madison was much more tempered in the Virginia Resolution. His language does not speak of nullification or voiding laws, but the right of the states to “to interpose for arresting the progress of evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them.” By interposition, as he explained in his Report of 1800, Madison meant “expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection.” That is, state actions meant to arouse public opposition, challenge federal actions and ultimately change the objectionable action.

The important distinction between Madison’s idea of interposition and Calhoun’s theory of nullification should be kept clear and bright, and has practical application in today’s debates.

Many of the options states are pursuing seem to fall within Madison’s categories of legitimate state action. The Health Care Freedom Acts passed by eight states last year and being considered in several others this year are a perfect example. Virginia used its HCFA as the basis for their so far successful legal challenge to Obamacare (Commonwealth of Virginia v. Kathleen Sebelius). A different approach can be seen in the Firearm Freedom Acts passed in 8 states (proposed in 22 more) cleverly designed to challenge expansive federal claims of regulatory authority under the Commerce Clause. South Carolina is doing the same with the Incandescent Light Bulb Freedom Act. These acts are aggressive state actions that challenge federal laws—but they are not nullification. Nor is it nullification when states refuse to participate in federal programs and mandates, such as the REAL ID Act.

If we do not remember the past, the old saying goes, we are bound to repeat its mistakes. In one state at least, it looks like that is not going to happen this time around.

Let’s hope that the other state legislators—all well-meaning, focused and impassioned as they are—follow that good example and uphold the Constitution.

Join The Discussion

Brent has his view, the nullification promoters rightfully has theirs.

Earlier I shared the following quote with a friend;

According to the 12th anti-federalist writing by Brutus, " … I showed, that the judicial power of the United States under the first clause of the second section of article eight, would be authorized to explain the constitution, not only according to its letter, but according to its spirit and intention; and having this power, they would strongly incline to give it such a construction as to extend the powers of the general government, as much as possible, to the diminution, and finally to the destruction, of that of the respective states."

Although this statement refers to SCOTUS power, it also highlights the necessary weight Madison's added Bill of Rights carried into constitutional law, such as the states' right to nullify federal overreach into the states' sovereign domestic affairs. For this reason, I respectfully disagree with your conclusion. What these states are attempting to do is constitutional.

Quoting the terrible, Constitution-stomping President, Andrew Jackson, to make your point that the nullification "case is closed" gets you no traction. It certainly wasn't "closed" by Jefferson in the Virginia and Kentucky Resolutions. So, in your view, we're left to the mercy of the wonderful courts to decide. Imagine a legal contract where one of the parties can determine how the contract is carried out and the other party–in this case the states who created the fed–are left in the lurch.

Trusting the three branches of the fed when they all speak with one voice leaves the the states and their people with but one recourse: nullification. get Tom Woods book Nullification and dare to read further into the issue rather than be a repeater of the claptrap handed out in law schools.

I expect more from an organization that says it supports the Constitution.

"When a legislature undertakes to proscribe the exercise of a citizen's constitutional rights it acts lawlessly and the citizen can take matters into his own hands and proceed on the basis that such a law is no law at all. – Justice William O. Douglas

if the Supreme Court will not protect undelegated rights from Fedreal usurpation, the next firewall are State Legislatures. Should State Legislatures fail, a citizen is justified in protecting his natural rights. This is made clear in the Declaration of Independence, and cannot be washed away with years of judicial malpractice

Nullification is a Constitutional right – and responsibility – of the several states. The history and Constitutional rationale on this point is clear, despite any jurisprudence to the contrary. Nullification may or may not be the wisest strategy, but it is constitutional.

Additionally, we probably need to be sure in any given discussion, which "nullifications" we are talking about. I've seen what I would consider 2 or 3 different definitions in recent discussions of the issue.

The constitution does not need a nullification clause. The states are simply not bound to honor any law that the federal government makes without constitutional authority. The states are no more bound to honor an unconstitutional federal law written without authority than they are bound to honor a law that I wrote.

Letting the Federal Government grab whatever power it can just because the Supreme Court is complicit does not honor the constitution–it validates the notion that the the constitution no longer has any power to limit the reach of the Federal Government and, therefore, is an essentially a meaningless document. Nullification may be the last line of defense for the constitution and the rights of the states, but it is an important one.

It is sad to see the Heritage Foundation turn its back on the constitution like this.

"So how do we enforce the Constitution over unconstitutional laws? The document itself lays out the best options: change the law, stop its implementation, challenge it in the courts and, if necessary, amend the Constitution. But there is no state nullification clause."

Well, first off, teh constitution does NOT in fact say ANYTHING about challenging a law's constitutionality in the courts. That is a concept that Chief Justice John Marshall came up with. Article III, Sections 1 & 2 lay out many things the SCOTUS is supposed to rule on, but nowhere does it mention constitutionality or challenging a law as unconstitutional.

Second, there is a "state nullification clause". It says, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Nowhere are states prohibited from refusing a "law" that goes against the constitution and nowhere is any branch of the federal government given the power to decide which laws are constitutional or not. The federal government's powers are "few and defined" while the state's powers are "many and indefinite". Idaho H.B. 117 is less of a nullification bill than is the "REAL ID nullification" law. Nullification is a constitutional tool the states can and should use to reject our out of control federal government.

The Federal Court system cannot be expected to be an impartial judge in the scope of Federal power vs State power. The states formed the Federal Government by ratifying the Constitution, and nullification has been used many times in the past to reign in an out of control Federal Government. Many leading anti-slavery advocates nullified the Fugitive Slave laws in the 1850's.

If we were to believe this article, our Constitutional rights are only what 9 black robed judges on the Supreme Court say they are. It is a primary responsibility of the states to protect their citizens from an out of control Federal Government. If protecting citizens means nullification or after all else failed, revolution, so be it.

1) we are free people, endowed with liberty and sovereign unto ourselves.

2) the states formed a compact to delegate enumerated powers, and only those powers enumerated in the Constitution, to the Federal Government. This is explicit in the 9th and 10th amendments.

It seems common sense that a law or regulation that is not founded in the sovereignty transferred to the Feds by the people and states in the Constitution is null and void and of no effect. The Feds can't do what they can't do, and they, via a supreme court, can't be the final arbiters of what they are empowered to do. They will always assume more and more power.

To say our only remedy for trampling the sovereignty retained by the states and the people is to voice our opposition and pursuade is to say we should have continued to plea to King George and not fought for our independence. Is that really the position being offered?

James Madison says in his Report of 1799 (a follow up on the Virginia Resolutions) that the Supreme Court does not have a final say in constitutional matters, but the several states "the parties to the federal compact":

"The resolution supposes that dangerous powers not delegated, may not only be usurped and executed by the other departments, but that the Judicial Department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and consequently that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another, by the judiciary, as well as by the executive, or the legislature."

A cross section of the responses here captures the feeling of most folks on nullification.

It also exemplifies how astute, well read, and well informed most folks are.

I had to go back to the beginning to be sure that what I had just read came from the Heritage Foundation. And when I did it came to me that I am not one of those well informed, well read folks. That's depressing!

With a post like that Heritage, you are part of the problem, not the solution… Those of us who believe in true freedom (both social and economical) have chosen our side and that is with the Founding Fathers and Ron Paul. You Decepticons will fall along with the other Statists when Freedom prevails.

I too believe there is a nullification clause in the Constitution, the 10th Amendment. Nullification is clearly implied in the 10th Amendment; any other interpretation makes the 10th Amendment null and void. Now, one could claim that the Federalists wanted the folks in the state legislature to believe the states could determine whether a law was within Art. I Section 8, while secretly maintaining that power to themselves, in order to fool people into ratifying. That is clearly possible, but it does not leave much respect for the notion of constitutional government, that it has to be based on deception. Are you really comfortable with a sham ratification? Clearly, state legislatures would not have ratified if they thought the 10th Amendment meant only the federal government got to make the determination of what was constitutional.

Sorry Mr Spalding, but you clearly don't know what nullification is, and I'm beginning to doubt, 'constitutional government'. First and most important, you can't call a government a 'constitutional government, when they IGNORE THE CONSTITUTION. Ever since the 17th amendment corrupted the federal government taking ANY voice away from the states, the progressive roller coaster has been running wild. So given that the states now have NO voice in the federal government, how do you propose they "change the law, stop its implementation, challenge it in the courts and, if necessary, amend the Constitution."

If the so called 'federal government' is run by criminals, (did you listen to their disdain and disregard for the constitution when they were 'passing' the 'health-care bill'?) there is NO recourse but for the states to obey the constitution rather than the criminal decrees of a gangster government.

You appear to have the same problem that progressives do, you trust the PEOPLE running this government more than it's founding documents. This is to be a nation of Laws not a nation of men.

All of your misunderstanding or ignorance can be easily forgiven or understood, but your cheap attempt to allude to "the Nullification Crisis leading up to the Civil War" implying that nullification was the excuse democratic states used to support human slavery is nearly as shameful as the idea of slavery itself.

I've blindly expected better of the Heritage Foundation. I shan't make that mistake again.

At first I thought I was reading something written for the Huffington Post and than I remember it's from Heritage. Wow, you guys really have shown that it doesn't matter how big Government is and how much it destroys the Constitution just as long as your party is in charge.

I remember when the Heritage Foundation was at the forefront of the intellectual conservative movement, with thought provoking pieces of analysis.

Sadly, it has now devolved into a stale and monotonous establishment piece barely distinguishable from the Brookings institute in content or view.

I sincerely hope that this will change and once again the Heritage Foundation can join conservatives in fighting back the expansion of the government in earnest; until that day comes we will just go on ahead without them.

Thank you for this very clear and understandable explanation of the nullification issue. I have received emails from the group pushing this and while I thought it sounded like a good idea! I did not fully understand it. Now I understand much better and can make a better decision regarding it. Of course, I would expect nothing less than clear and understandable from Matthew Spaulding!!

This is shameful coming from Heritage. Matt, you are terribly wrong in your thinking. Do some more research and come back to write an article in support of nullification. It's the only way to redeem yourself. It is the federal government who is acting outside of its delegated powers. The states are upholding the constitution by refusing to follow unconstitutional federal "laws". The states do have the authority to decide for themselves what is constitutional law. The federal supreme court was not formed to be the final arbiter on issues between the states and the federal government. Get it straight now; this is our last chance to "arrest the progress of evil" by using the "Rightful Remedy". Everyone should recognize these quotes. Do you?

Wow! I love it when controversial items come to the fore! It makes people and organizations show what they're REALLY all about. Now we know that the Heritiage foundation is for same as always politics and is a hollow organization cloaking itself in the flag and constitution. I now know what to do with all correspondance from them. (file 13)

Thanks for confirming your positivist view of the Constitution, and clarifying that the Federal government can do what it wants, when it wants, outside of Article I Section 8 of our compact with them. I respect your opinion and scholarship, but I think you're in pure error. If the Federal government has "few and defined powers," and the remaining powers are "reserved to the states," then it would hold whatever passes by a vote, not authorized by Article I Section 8, would be in clear breach of its contract with the states and their people.

And your solution is just to keep passing as many counter-laws as possible until it's maybe reversed? Isn't this like encountering your boxing partner, who admits he's on steroids, and instead of making him forfeit his right to box, you just go on fighting him ad infinitum until you, once again and always, get knocked down by his superior powers of cheating, i.e. usurpation of methods not authorized??

So, how did the author conclude that Madison was referring only to official action to merely sway public opinion? I did not get that from the link provided in the article to what Madison wrote in 1800. The Heritage article attempts to quote Madison's 1800 Report by saying, "By interposition, as he explained in his Report of 1800, Madison meant 'expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection.'" But in the link to Madison's Report, the quoted phrase is non-existent. So, too, are the the most material words within that phrase non-existent. Am I missing something?

Here is the salient part of what Madison did write, which indicates that the states are indeed the final arbiters on such matters (not pundits, but judges and deciders):

"It appears to your committee to be a plain principle, founded in common sense, illustrated by common practice, and essential to the nature of compacts, that, where resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges, in the last resort, whether the bargain made has been pursued or violated. The Constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority, of the Constitution, that it rests on this legitimate and solid foundation. The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated; and consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.

It does not follow, however, because the states, as sovereign parties to their constitutional compact, must ultimately decide whether it has been violated, that such a decision ought to be interposed either in a hasty manner or on doubtful and inferior occasions. Even in the case of ordinary conventions between different nations, where, by the strict rule of interpretation, a breach of a part may be deemed a breach of the whole,–every part being deemed a condition of every other part, and of the whole,–it is always laid down that the breach must be both wilful and material, to justify an application of the rule. But in the case of an intimate and constitutional union, like that of the United States, it is evident that the interposition of the parties, in their sovereign capacity, can be called for by occasions only deeply and essentially affecting the vital principles of their political system.http://press-pubs.uchicago.edu/founders/documents….

I think you need to spend a bit more time reading on this subject. King George penned treaties with each State. Each State was considered sovereign and as such, each State is recognized as an independent SOVEREIGN nation.

Each State delegated limited powers to a General Government. Any power asserted by the General Government that is not within the agreed upon compact (contract) is of a necessity, null and void.

Read some of the books by Tom Woods. He is concise, places the phraseology into proper historical context (the lexicography of words during the time period written) and makes a very strong case for the nullification movement.

I expected more from the HF, but now, it seems that the HF is more of a Neo-Conservative institution, rather than a truly constitutionally conservative institution.

Actually using the nullification crisis of 1832 is a bad example because the people protesting the nullification were the ones trying to impose the extremely high tariff. Of course, they are going to say nullification is a bad idea.

The supreme court is not the final decider of what is constitutional or not. The constitution states that congress can create 'exceptions' to what cases can be heard by the supreme court. This throws it back to the state courts that can declare the law unenforcable in their jurisdiction.

The Kentucky uses the word nullification and you say that means pursue legal means but what does the word nullify mean if it does not mean to declare void? What dictionary are you using.

This article comports wonderfully with the consensus of contemporary legal scholarship. Congratulations on that. Unfortunately, the consensus of contemporary legal scholarship does not comport with The Constitution or the deliberations surrounding its establishment.

As has been said, The 10th Amendment is about as clear and straightforward as you can get. One can easily ask what part of it you dont understand?

All government officers at every level are sworn to uphold The Constitution, and accountability is not a uni-directional matter, but the charge of all officers to assert, whether downward, upward or laterally. No party to the constitutional compact is licensed to flout its provisions. The federal government may hold states accountable to The Constitution and states may do likewise in the other direction.

A socially decorous party will recognize the rebuke and accomodate. But it poses nothing new in human history for a party to resort to force.

Oh, for shame! I thought I'd never see my heroes at The Heritage Foundation shaking a finger of "no" at nullification! You good folks are on the wrong side of this issue this time … without nullification, how can we claim that the union exists for the good of the States that produced it?

Matt, Matt: Sloppy reasoning throughout, beginning with finding a State Senator in Idaho who couldn't find "nullification" in the US Constitution. So? You should at least tell us what the 10th Amendment means; if not state sovereignty over matters not specifically granted the Federal government, then what do you read into “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Is forcing people to do X granted to the Feds? No? then it is reserved for the sovereign states and/or the people. Does Congress pass laws that are unconstitutional? Yes, the SCOTUS has found many examples. How likely is it that SCOTUS could catch ALL unconstitutional laws? What would the Founders have had us do then? Would the Founders have urged the sovereign states and the people to follow unconstitutional laws? Read the Declaration of Independence and decide? Were the Founders aware of the possibility that SCOTUS would miss a few? Were the Founders so witless as to be unaware of the possibility that the Congress or the Executive would overreach and those few folks in robes not stop the overreach? Matt, you should at least have addressed the issues rather than finding one person in Idaho who agrees with you and letting it go. Worse, you go on to list "aggressive state actions that challenge federal laws—but they are not nullification. Nor is it nullification when states refuse to participate in federal programs and mandates, such as the REAL ID Act." Am I to conclude that when states exercise sovereignty in opposition to the Feds that is not "nullification" but something else. Are you confusing the concept of nullification with some concept you didn't mention such as amending the constitution or civil disobedience or pouting and holding our collective breaths? Please give some serious thought to what the term "nullification" might mean, then define it and write a competent piece on the topic. .

Heritage is a nuts and bolts organization that promotes conservative solutions to todays problems. However, it selfdom, if ever, mentions the "Constitution" in it's arguments. It's almost as if the Constitution "does not exist" or is a "living document" as defined by progressives who prefer to ignore it. In this context, one never sees Heritage reminding people the Constitution is a living document but only through the Amendment Process which takes 3/4 of the states to ratify and change.

States can and should nullify "un-Constitutinal" federal enactments, witness the national ID card controversy that the majority f the states have problesm with and have ignored. Thks leads me to think th writers of the aforementined article need to go back to school – one like Hillsdale College – for a refresher course in the Founding documents and it's authors.

I am in agreement with the majority of those posting who are disappointed in Heritage. I have enjoyed the First Principles series but I can see it is all talk and no action. I have removed myself from their mailing list because of this article. I am now a little embarrassed to have put my address on that list at all. I do wonder, being from Idaho if you at all influenced Bart Davis et al?

Good luck in your "fight" to push back the national government within its enumerated powers.

I may have missed it but has anyone here mentioned the near universal pledge to protect and defend the constitution – sworn by members of all three branches of government? Do you assume that state legislators make that oath but don't really mean it? If the oath is made in good faith, isn't action required if the threat becomes real? Isn't the constitution written to provide corrective action when unconstitutional laws are passed? What do the states do when a federal court upholds an unconstitutional law? And you say nullification is nowhere in the constitution?

There is no way the feds have exclusive power to determine what is and what is not constitutional.

It is with dismay and regret that I read Heritage's oppossition to the Nullification effort. Nullification is a constitutionally valid exercise by the states of thier soveriegnty over the Federal government when the Federal government steps over the boundries of its limited powers under Article 1, section 8. W/o going into a history lesson, it was practiced and/or threatened by both north and southern states begininng w/ Madison and Jefferson's principaled opposition to the Alien & Sedition Acts, thru Massachussette's opposssition to Thomas Jefferson's election as president, to Wisconson's refusal to abide by the federal Fugitive Slave Act IN OPPSITION OF SLAVERY.

Heritage does many good things and I have been supporting it financially. I'm questioning that support b/c of this unfortunate and flawed misunderstanding of our history and our jurisprudence. I refuse to support yet another "establishment" think tank which refuses to re-establish the founding federalist principals of our republic. What's next? Will you be claiming the Constitution supports the creation of the Federal Reserve? Keep it up and your efforts will be still born.

The right of nullification is a slamdunk. Because it is not specifically granted in no way means the right does not exist. Jefferson described nullification as the "rightful remedy" to federal overreach. Is he chopped liver and to be ignored?

The 10th Amendment reserves all rights not specifically delegated to the federal gov't to that of the states and the people.

Nullfication, per se, therefore, need not be specfically granted to the States to be a reserved right. It is an unspecified power reserved to the States. Period. Fullstop.

What's so difficult to understand about that concept. And to quote His Imperial Majesty, Andrew Jackson, to support your case is inane.

Severe and likely irreparable damage can be perpetrated upon the country while awaiting an electoral solution to federal overrreach. Therefore, nullification is a "rightful remedy" and it should be resorted to vigorously and as often as necessary to maintain constitutional order and balance of power between the States and the Feds. That's the only effective way we can protect ourselves from the tyranny of our runaway Democratic Socialist Republic of America.

I can add no more to the historical support of Nullification and States Rights than that which has already been written.

BUT, practically speaking, States must have the right to nullification and the appointment of their senators in order to limit the growth of tyranny and damage to the union.

As a member of Campaign for Liberty I was stunned by the negative response from local members when I mentioned Heritage Foundation. I prefer a bigger tent for personal liberties, but those that limit the power for some and grant it to others must be confronted immediately and with enough force to limit the thought of future incursions.

Now I see what they already knew and my disappointment in such a Statist work from Heritage and Mr. Spalding is nearly boundless. Your argument supports are far to thin and possibly dubious, as seen from the responses.

I can only imagine the disappointment Joseph Coors and Ronald Reagan woulds find in such a work as this.

[…] its confusion, North Dakota is to be commended for joining several other states, following the lead of Idaho (and recently Wyoming, South Dakota and Arizona) that considered and then rejected the […]

[…] Matt Spalding and several Tenth Amendment Center writers. Specifically, Dr. Spalding wrote Rejecting Nullification: Idaho Draws the Constitutional Line and Nullification Fails, Again (This Time in North Dakota), stating his opposition to nullification […]

[…] Matt Spalding and several Tenth Amendment Center writers. Specifically, Dr. Spalding wrote Rejecting Nullification: Idaho Draws the Constitutional Line and Nullification Fails, Again (This Time in North Dakota), stating his opposition to nullification […]

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